I would only add one small thing to Kevin's account: It's not clear that the provision of these sorts of "services" -- transportation and "body guard" duty -- was criminal even under U.S. domestic law at the time of Hamdan's conduct. The material support statutes did not apply in Afghanistan until the PATRIOT Act was enacted (four weeks before Hamdan was captured), and "services" was added to the prohibition only in 2004.

I would think that the sole issue is whether providing material support for terrorism was forbidden by the common law of war at the time.

The fact that our domestic civilian criminal statutes may not contemplate such war crimes would appear to me to have little relevance in this analysis. By their nature, civilian criminal codes are not intended to remedy war crimes.

By their nature, civilian criminal codes are not intended to remedy war crimes.

Do tell. 18 U.S.C. s 2441(a):

Offense. - Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisonedfor life or any term of years, or both, and if death results to thevictim, shall also be subject to the penalty of death.

This btw has always seemed to me the hole in the MCA -- which rewrote (c)(3) of this statute, but didn't appear to touch (c)(1), which defines "war crime" as a grave breach of the Geneva Conventions of 1949.

Just observations - I haven't thought them trhough enough to make a point.

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Is "war crime" a necessary label, in order for an offense to be triable to a military commission?

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There is some overlap (between offenses in 10 USC and 18 USC) in the simple names of the offenses, e.g., Murder, Rape, Hijacking, Terrorism, Providing Material Support for Terrorism, Spying, and Conspiracy.

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On a quick glance, it seems the distinction - the being amenable to trial by military commission - hinges on "a person being subjected to 10 USC" (= alien unlawful enemy combatant) rather than on the nature of the offense.

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Being an accused alien unlawful enemy combatant, without more, provides the elements that support a case before a military commission, on a charge of providing material support. It seems HARDER to qualify for the venue (on account of needing to engage the activity purposefully), than to meet the elements of the offense.

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"unlawful enemy combatant" means ... a person who ... has purposefully and materially supported hostilities against the United States ... who is not a lawful enemy combatant (all terrorists and their sympathizers are unlawful enemy combatants)

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"Material support" in 18 USC 2339A (Providing material support to terrorists) is triable to a military commission if the actor is an alien; and material support is broadly defined, and need not involve an intention to effect political change.

The military is arguing that the common law of war prohibited as a war crime the conduct of providing material support for terrorism and that common law was merely codified by the MCA.

Western common law of war has recognized terrorism in the form of piracy and brigandage as a malum in se war crime since at least Roman times, whose perpetrators withdrew themselves from the realm of humanity and could be warred upon and summarily killed by all peoples without fear of “punishment nor moral anguish.” Mikkel Thorup provides some of the numerous authorities for this proposiiton in a talk entitled “The horror of the ’enemy of humanity’ – on pirates, terrorists and states” which he delivered at Mansfield College, Oxford last year.

Lincoln codified this millennium old common law of war to Confederate terrorists/brigands in Section IV of his General Orders No. 100, prescribing execution for these marauders. Moreover, western common law universally has recognized accomplice liability for both civilian and war crimes. War crimes most certainly are not limited only to those who personally commit the murders and other atrocities. For example, the Nuremberg trials indicted Gustav Krupp (not tried for poor health) and convicted Albert Speer, Walther Funk and Julius Streicher for support of various Nazi war crimes which they did not personally direct or perpetrate under what are essentially theories of accomplice liability.

Thus, Hamdan’s military prosecutors and Judge Allred were quite correct to note that common law or war accomplice liability as applied to the supporters of Confederate brigands pursuant to General Orders 100 during the Civil War was an example of “the laws of war in every civilized country.”

Even if we equate terrorist with pirate, that equivalency doesn't settle the question of how (even today) to treat those who knowingly support pirates, or about how those people have been treated under law as a historical matter. See the craftsmen who service the pirate's vessel, the makers and sellers of cannon, cannonball and powder, etc.

"Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death."

"War-rebels" may suffer death as well (Art. 85), but not necessarily (i.e., "execution" is not "prescribed").

This is not a big change; spying was generally considered a capital offence back then.

I'd note, to forestall objections here, that Art. 82 says that those that fight out of uniform "shall be treated summarily as highway robbers or pirates." But that neither "prescribes" "execution", nor does it forestall trial or court martial. All it means is that such should be treated as "highway robbers", who would under other circumstances be tried, and perhaps executed, for such crime.

One guess what Article 82 is prescribing when it states that partisans "shall be treated summarily as highway robbers or pirates."

No thanks. I'd like to know what the order prescrib[ed] (it did "prescrib[e]" death for spies, but is less explicit about those covered in Art. 82). After all, that was your word.

FWIW, I'd note that Lincoln's orders -- in what was arguably a domestic insurrection of the most trying kind -- do not have the force of statutory law, much less the imprimatur of "international law of war".

One problem with all the precedents re: pirates, etc., is that people ignore the practical basis for those methods.

Apprehending pirates in the middle of the ocean, it was often infeasible to bring them to trial. And who had jurisdiction in the ocean?

The reasoning for warring on and eradicating unlawful combatants like pirates and brigands had nothing to do with jurisdiction or practical constraints. The legal history is remarkably consistent on this point - pirates and brigands were to be eradicated because their own murderous warfare on mankind removed them from the laws of war.

"18 USC 2441 codifies a certain range of war crimes defined under the laws of war and is not normally considered a domestic civilian criminal statute."

Excuse me??

I expect that, [ahem] normally, 100 out of 100 lawyers would concede Title 18 are domestic federal statutes of the United States by definition and act of Congress.

And this particular statute happens to apply to any such offense when committed by or against a US national whenever said offense is committed inside or outside US territory, which includes all US citizens and all US territory. Seems pretty domestic to me.

The reasoning for warring on and eradicating unlawful combatants like pirates and brigands had nothing to do with jurisdiction or practical constraints. The legal history is remarkably consistent on this point - pirates and brigands were to be eradicated because their own murderous warfare on mankind removed them from the laws of war.

Let's make a few distinctions here. Bart appears to regard any "unlawful combatant" as a pirate or brigand waging "murderous warfare on mankind." The Bush Administration defines an unlawful combatant as anyone fighting out of uniform and Bart, so far as I can tell, agrees.So the question is, granting that Bart is right about the millenia-old tradition of treating "pirates and brigands" as enemies of humanity unprotected by any laws, how millenia-old is the part about uniforms.

I have no doubt that Al-Qaeda is guilty of crimes against humanity. But the basic "crimes" the Bush Administration seems to have been charging so far amount to resisting an invasion without wearing a uniform. I cannot see resisting an invasion without a uniform as "murderous warfare on mankind."

I never argued that pirates, brigands and terrorists are the only unlawful enemy combatants who can fail to meet the definition of GC III, Art. 4. However, they tend to make up the lion's share of that category of unlawful combatants.

Your claim that "the basic "crimes" the Bush Administration seems to have been charging so far amount to resisting an invasion without wearing a uniform," appears to imply that al Qaeda was some sort of heroic indigenous resistance in Afghanistan. In fact, they were considered to be Arab invaders by the Afghans, who gladly rounded them up and handed them over to the Americans once their Taliban hosts were routed.

I have some fundamental objections to anti-terrorism legislation of any kind.

Terrorism is a much misused word and it is as well to begin with some attempts at a definition. Dr. Boaz Ganor, the founder and executive director of Israel's International Policy Institute for Counter-Terrorism Interdisciplinary Center, advocates the adoption of this definition:-

"Terrorism is the use of violence against civilians to achieve political ends."

That definition has the merit of simplicity and it is not dissimilar to this one:-

"Terrorism is the use of serious violence against military, police, government and especially civilian targets by irregular combatants to advance a religious, ideological or political cause."

If the two definitions are contrasted, one can see some of the difficulties of arriving at a wholly satisfactory definition.

Firstly, it is necessary to exclude the use of force by agents of a state. There are states which use force against civilians to advance the state's religious, ideological and political agenda: for example, Saddam Hussein's Baathist Iraq, or those tried or on trial at the International Criminal Court for the Former Yugoslavia.

The proper description of the acts of agents of the state is not that of "terrorism" although the use of terror as a weapon is widespread. These were crimes of a far more heinous nature: Genocide, Crimes against Humanity, Mass Murder and Torture. The more heinous because committed by agents of the state invested with the arms and the authority of the state.

Dr Gaynor argued in a question and answer session after a seminar at the Brookings Institution on 15th February 2005: "Terrorism is the use of violence against civilians to achieve political ends." This, according to Dr. Ganor, should be the universally held definition.

As such, it may be legitimate for affected populations to use guerilla warfare—attacks against combatant and noncombatant army personnel—to achieve political ends against a stronger enemy. However, he said, any attack against civilians — including Palestinian attacks against Israeli settlers — should be denounced by the international community.

For my part, I would be hesitant to define the Israeli settlers as truly "civilians" any more than I would define the French "colons" in Algeria backed by the force of the French state and their own arms as truly "civilians".

Anyone reading the account of the Massacre of Sétif in May 1945 when several thousand Algerians were murdered by "colons" with the French authorities standing idly by would be forced to conclude that these "colons" occupying lands taken from the inhabitants by force of arms were in a very real sense "agents of the state" or at least of "state policy". The "settlers" in the Occupied Territories are in a very real sense agents of the Israeli state and of "Israeli state policy" and, as such, I would argue cannot be entirely equated with "non-combatant civilians".

The phenomenon of terrorism has been with us for a very long time. There have been many countries which have known radical ideologies which have turned to terrorism as a weapon, particularly since the 1900's. The anarchists of Middle Europe are an example. Anarchist bombs were the trigger which sparked off World War I.

The history of decolonisation of the European empires was littered with examples of insurgencies which resorted to terrorism as part of their struggle. Examples would be: the Irgun in Palestine, the MCP terrorists in Malaysia, the Mau-Mau in Kenya and the FLN and OAS in Algeria and France.

In more recent times there have been groups such as the Red Brigades in Italy, the Red Army Faction in Germany, ETA in the Basque Country, the IRA in Northern Ireland and the UK mainland, the Tamil Tigers in Sri Lanka, and various Palestinian groups, all of which which have conducted terrorism campaigns for their religious, ideological or political purposes.

In a democracy it should be unnecessary for any group who have a particular political agenda to have to resort to acts of terrorism to achieve their aims. The theory is that if the aim of the group is in any way legitimate, they ought to be able to achieve reform by protest, by debate and by political action without resort to acts of violence.

In this context, political action can include breaking the law. There is a long and honourable tradition of protesters in democratic societies being prepared to defy the law - and pay whatever penalty imposed - as a means of political protest.

That was the case of the suffragettes in the UK who were jailed for breaking windows, chaining themselves to railings and other offences. The protests, unlawful as they were, swelled the ranks of the votes for women movement which eventually led to women being given the vote.

Ghandi, himself a member of the English bar, once told a British colonial judge in India that it was the Judge's duty to pass on him a severe sentence: it was the judge's job to uphold the law, Ghandi's mission to demonstrate the unjustness of the law. A similar non-violent approach was a characteristic of the the Civil Rights movement in the United States of America.

Not everybody has the moral courage of Ghandi or the leaders of the NAACP. There are those who feel that their grievances are such that they must go beyond non-violence.

This was the case of the suffragettes - although the degree of violence employed was so minor as not to qualify as terrorism.

But what about damage to property? In the UK we had the case of Welsh language activists some of whom resorted to the arson of holiday homes owned by English families in Wales. Some were arrested and very properly convicted. But the phenomenon ended with legislative reforms to give more equal status to the Welsh language in Wales. There was a similar movement of German language nationalists in the Alto Adige region of Italy - with the same outcome.

What about acts of violence which lead to injury and the loss of life ? It seems to me that in a democracy there can be three sub-categories of terrorism:-

Single Issue FanaticsFor an example of "single issue" fanaticism, consider the "pro-life" groups which campaign in the United States of America, the United Kingdom and elsewhere against abortion, even though a majority of the population has determined by democratic means that the law should permit abortion. Another is to be found in "animal rights" groups which campaign against experiments on animals for medical purposes. There are also people who protest against the introduction of genetically modified organisms into agriculture.

The majority of fanatics among such single issue groups confine their protests to means which we think are entirely legitimate in a democratic society: they may be inconvenient for governments, or for the forces of public order, but the right to protest is an important freedom in a democracy.

There are, however, others who overstep what the majority regard as the limit of legitimate protest. The US ABC News Web Site carried in 1998 an article about "abortion terrorism":-

On ProLife Virginia’s Website, a large picture of a smiling Paul Hill is displayed with the caption, “American Hero.” Hill, an anti-abortion activist and former minister, shot and killed Dr. John Bayard Britton and volunteer clinic escort James Barrett outside a Pensacola, Fla., abortion clinic in July 1994.ProLife Virginia’s Rev. Donald Spitz writes that Hill is “currently awaiting execution...for saving innocent babies from being murdered by baby-killing abortionist John Britton.” Spitz also publicly cheered Slepian’s murder.

Does the elevation to hero status for a killer by men who have a large following make them culpable in the violence? NARAL’s Michelman says it does. “Anti-choice groups and their leaders are using sensationalized rhetoric and incendiary statements to characterize abortion ..... and [have] even gone so far as to publicly justify the murder of these men,” she said this week.

"These are acts of terrorism, pure and simple,” Michelman added. “Their words drive unrestrained factions of their movements to commit these horrific acts.”

Separatists and MinoritiesUnder this sub-category we have the campaigns of the IRA in Ireland, of ETA in Spain, of Corsican nationalists in France, of Kurds in Turkey.

I suggest that in all such cases the primary duty of the state begins with the obligation to maintain the rule of law - and public order. In all three cases the obligation is to detect and, if possible prevent, failing that, to apprehend, indict and convict perpetrators.

But I suggest that there is also a secondary duty on the state which it neglects at its peril.

That is the obligation critically to examine the motivations of the protestors and the degree of support they have within their community.

The IRA in Ireland could at one time count on the passive support of perhaps 80% of the Catholic community who were 40% of the population of Northern Ireland. The support derived from systematic oppression of the minority community by the majority - in all kinds of fields: education, employment and housing are but three examples. There was also a failure to recognise a legitimate nationalist aspiration. It was only when a political process was engaged addressing these issues that many years of terrorist activity began to lose popular support - and the problems are not as yet wholly resolved. The same phenomenon can be observed in relation to the Basque separatist movement in Spain. A political process of regional autonomy, recognition of the minority language, and the like moves has replaced years of repression - with the result that the level of violence has greatly diminished.

But in any state, repressive or not, there is a natural tendency for those responsible for law and order to take a sledgehammer to crack a nut. To draft ever more repressive legislation and to curtail civil liberties.

A good example would be the UK legislation. This is the definition in the Terrorism Act 2000:-

" 1. - (1) In this Act "terrorism" means the use or threat of action where-

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it-

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

I have objections to this kind of legislation, because once enacted, the temptation for prosecutors is to use it indiscriminately. That can stifle legitimate protest. Take the case of, say, GM food protesters who, with the best of motives, decide to trespass on a farmer's land and destroy trial GM crops. The ordinary criminal law has penalties for this kind of behaviour but there is now concern that the UK terrorism legislation is drawn wide enough to be used in the case of GM food protesters.

What about cases when the legitimacy of the state is in issue and changes to the law cannot be achieved by legitimate campaigning? Imagine that the Boston Tea Party had taken place with the Terrorism Act 2000 in force in the British colonies in North America:-

'On the evening of December 16, 1773, three companies of fifty men each, masquerading as Mohawk Indians, passed through a tremendous crowd of spectators, went aboard the three ships, broke open the tea chests, and heaved them into the harbor. As the electrifying news of the Boston "tea party" spread, other seaports followed the example and staged similar acts of resistance of their own.'

The full text of the report makes it plain that the valuable cargo of three merchantmen was thrown into Boston harbour, which most prosecutors would say qualified as "serious damage to property" - and it is plain from the full report that the motivation of those causing the damage was to influence the colonial government of the day to repeal the Tea Act. Thus it falls within the definition of the Terrorism Act 2000.

Samuel Adams and his companions are not described in the history books as "terrorists" but as "patriots".

The power of the modern state is such that a genuine political movement, an insurgency against a state which abuses its people or a substantial number of them, can be easily repressed by that state if the state has no effective human rights guarantees. Ask any Hungarian or Pole about life under the puppet governments of the cold war. Ask any Russian who went to Stalin's gulags and still survives. Ask any black South African who lived under the Apartheid regime. Ask any Iraqi who survived the Saddam Hussein regime. Increasingly, insurgency movements have had to resort to terrorism to achieve what in "Bushspeak" is described as "regime change".

In the Introduction to an article for Arab Studies Quarterly, Peter Weiss put the problem thus:-

What do Nelson Mandela, Menachem Begin, Gerry Adams and Yasir Arafat have in common? They all made the transition from being regarded as terrorists to being recognized as statesmen and peacemakers. In fact, two of them, Mandela and Arafat, were recipients of the Nobel Peace Prize and Mandela is viewed today by many as the leading moral authority of his time in the world.

What does this tell us about terrorism? If nothing else, that terrorism, the word on everyone's lips, is easier to talk about than to define. As one commentator, Nissan Horowitz, put it in the mainstream Israeli newspaper Haaretz, " Terrorism - it's all in the eyes of the beholder. Why is the attack on the Twin Towers called terrorism, while the bombing of a hospital in Kabul is not?"

Indeed, international lawyers have struggled to define terrorism for nearly a century, largely without success. In the words of the hoary cliché, "One man's terrorist is another man's freedom fighter." Or, in the context of Israel/Palestine, whom the Israelis call a terrorist the Palestinians call a martyr.

The reasons for this paradox are not mysterious. The terrorist acts out of a sense of injustice perceived by the group to which he belongs, hence he is a hero to the entire group, which may be as small as an anarchist cell or as large as an entire tribe, nation, religion, class or other societal grouping.

In the period following the end of World War II, the anti-colonial struggle in Africa and Asia and later the anti-oligarchical struggle in Latin America often relied on tactics condemned as terrorist by those unsympathetic to the aims of the struggle and applauded by those in solidarity with the struggle, whether directly engaged in it or cheering it on from the sidelines. The controversy raging around the film "The Battle of Algiers", with its scenes of bombs exploding in crowded cafés, is emblematic of that era.

With the end of colonialism - albeit not neocolonialism - and of "wars of liberation" - albeit without bringing a full measure of freedom to those who waged them - terrorism has lost much of its luster and now elicits virtually universal condemnation, at least in legal terms. And yet, a comprehensive definition still eludes the world community.

The article goes on to discuss the difficulties which prevent the UN from coming up with a satisfactory definition of terrorism for an international convention which can be summarised in that adage that "one man's 'terrorist' is another man's 'freedom fighter'.

The immediate difficulties preventing the drafting of a satisfactory international convention as the following:-

(1) the Arab and Muslim world does not want the definition to encompass the activities of the organisations struggling for the liberation of Palestine;

(2) Israel and the USA do not wish a definition which would encompass the activities of the Israeli Government and the Israel "Defense" Force in the Occupied Territories;

(3) The United States of America, its principal satellites, the UK and Israel and indeed the other "Great Powers" - Russia and China, do not wish a definition which would qualify as terrorism their activities in Afghanistan or Iraq or in any other country they might one day wish to invade without UN authority;

(4) There is no effective means within the UN framework for dealing with unjust and repressive regimes inside a single sovereign state.

Terrorism can be defined. Within a democratic state it can be considered a resort to criminal conduct and the fight against acts of terrorism can be primarily the task of the police and the criminal justice system. For this purpose, anti-terrorism legislation per se is unnecessary and is often counter-productive.

There is also a duty on the democratic state to examine itself and its institutions to ascertain whether the acts of terrorism do not have their origin in the "tyranny of the majority". If they do, then reform may be necessary before the criminal acts will end and the fight against terrorism may necessitate a two-pronged approach combining repression and reform.

Insurgency terrorism in repressive regimes is to be expected. It will either succeed, in which case the repressive regime will be replaced, or it will be be repressed - but in the latter case, this will only postpone the problem to another day. Insurgency terrorism may be expected to diminish when the international community devises effective procedures for intervention within the boundaries of nation states in cases where human rights and civil liberties are being infringed.

Until then, anti-terrorism legislation should not be used to deal with activities which have taken place outside the territory where prosecution takes place.

Viewed in his context a "material support for terrorism" charge directed to activity outside the USA seems entirely wrong. If the support is directed to furthering a criminal act inside the USA - then a conspiracy charge under ordinary criminal statutes might well be appropriate.

Certainly, I find it very hard to see how "terrorism" charges fit into the laws of war.

Take a hypothetical: The US, in furtherance of the "Hague Invasion Act" decides to invade the Netherlands to rescue some US citizens on trial before the International Criminal Court. Are the Dutch patriots who resist the unlawful invasion - or their UK supporters to be liable to US charges of terrorism before a US tribunal of some kind?

Once again, thanks Mourad, this time for putting together your terrorism comment. But I noted that you did not include the prelude to America's Civil War. Over the past 7 years I have been researching the events leading to John Brown's Harpers Ferry raid. John Brown's activities in Kansas, particularly in 1856, could be called that of a terrorist - and he had been called that. But to many Abolitionists and Free Staters, he was a hero. We all know the elephant in the room was slavery. Consider how it tore up America. We don't have slavery anymore in the US. Perhaps it would have gone away without John Brown and without the Civil War. But then consider how long it took in the US for Brown v. Board of Education, in 1954, the year I was graduated from law school, and the foot-dragging despite "all deliberate speed" continuing to date.

The 150th Anniversary of John Brown's Harpers Ferry raid comes up in October of next year. A special symposium is planned. Perhaps participants can be expected to address John Brown as a terrorist or a martyr with the benefit of events throughout the world since, including most recently as you have narrated in your comment.

I should note that Boston and Massachusetts, in addition to the Boston Tea Party, was most active in supporting John Brown in Kansas and (via five of the Secret Six) at Harpers Ferry.

Neocon Bart adverts with the somewhat misleading link "legal history" to a paper presented at Mansfield College Oxford by Mikkel Thorup, a Danish academic in the Instiute for Philosophy and the History of Ideas at the University of Aarhus.

The article begins with these words:-

"In the US National Security Strategy from September 2002 it states that the US will supplement its military war on terror with a ‘war of ideas’ which includes: […] using the full influence of the United States, and working closely with allies and friends, to make clear that all acts of terrorism are illegitimate so that terrorism will be viewed in the same light as slavery, piracy, or genocide: behaviour that no respectable government can condone or support and all must oppose".

Certainly, Neocon Bart, always true to the objectives of his Reichspropagandaministerium, has been trying very hard on this blog to promote the idea that terrorists should be equated to pirates.

But please note that the NSC document uses the future tense: "...so that terrorism will be viewed...".

Given the misdeeds of the Bush Administration, the consensus desired is, if anything, further away than it was in 2002. Just about anything proposed by the USA in any international forum has come to be regarded as suspect.

The problem also remains that unlike "piracy on the high seas" where the problem was historically that of jurisdiction and which was resolved by the development of crimes of "universal jurisdiction", acts of terrorism generally take place within the territory of a nation state and there is therefore no need to make terrorism a crime of universal jurisdiction.

Indeed, within the state, there is no need even to make terrorism a crime per se.

The perpetrators of 9-11 can be perfectly well tried for a whole series of offences known to the ordinary laws and concepts such as conspiracy, aiding and abetting, etc can all be bought into play to bring in those who participate in the planning, financing, recruitment etc.

What the Neocons are after is an offence which criminalises insurgency in states the USA wishes to support.

Hamas for example has won an election and is in de facto control of Gaza. The USA does not like that. So it designates Hamas as a terrorist organisation and criminalises those who support it. Why not the Likud Party ?

We should not forget that the 3rd Reich categorised all the resistance movements in Nazi occupied Europe as "terrorists" - and for that matter so did the British and French colonial authorities during the liberation struggles of many - now independent - states.

It used to be a standing joke at Commonwealth conferences just how many of the heads of state and government in the ritual photograph with the Queen had previously been "guests of Her Majesty" in her colonial prison systems.

When I was a kid in the 1930s, we played cowboys and indians. Lisa's bro probably played pirates and patriots (surviving walking the plank). Perhaps his children will play terrorists and neocons. Meantime, let's make sure we look under our beds every night to make sure ....

1) The 2002 working paper was discussing the education of a modern society, which has no memory of the terrorism of piracy and brigandage, concerning the nature of this most recent terrorism.

2) I would slightly tweak Dr. Ganor's definition. IMHO, "terrorism" is the organized warfare against a civilian population. This definition distinguishes terrorism from common crime.

3) Terrorism under this definition is NEVER EVER EXCUSABLE FOR ANY REASON. It is a return to a barbaric total warfare against an entire people. Your excusal of this barbarity for any variety or political or social reasons makes your criticisms of my desired harsh treatment for terrorist barbarians to appear hollow and self serving. Rebellions can legitimately war against combatants, not an entire people.

4) Perhaps, the greatest obstacle to Palestinian national aspirations is their embrace of terrorism in a desire to eradicate Israel. They need to fundamentally rethink their position. If they recognized Israel's right to exist and then proceeded with a Ghandi/MLK style campaign of non-violent protest, the West (including the US and its Jewish citizens) would rally behind them and they could win much of what they legitimately seek. So long as they aspire to massacre Israeli civilians, they will lose.

"Terrorism is the use of serious violence against military, police, government and especially civilian targets by irregular combatants to advance a religious, ideological or political cause."

As you correctly note, this definition of terrorism excludes actions by the state. That's somewhat ironic, since the word "terror" originated to describe the actions of the French government under Robespierre.

I've always considered the real purpose of terrorism to be that of generating fear among the public in order to isolate them as individuals. It's the opposite of political action, which necessarily involves participation with others. In this sense of terrorism, many governments are the very worst perpetrators (Stalin, Mao, Myanmar, etc.). This is not a message any government wants to hear; hence the inability to provide a good definition.

"I would slightly tweak Dr. Ganor's definition. IMHO, "terrorism" is the organized warfare against a civilian population. This definition distinguishes terrorism from common crime."

I hope that Bart's superiors in his Neocon High Command don't read this blog. It might just dawn on them that Bart's competence as a legislative draftsman is open to serious question: the above definition exactly fits the "shock and awe" bombing of Baghdad, or the use of air power, missiles and helicopter gunships in urban centres such as Fallujah.

Acts of terrorism do not generally reach the level of barbarity occasioned by modern warfare. "Barbaric total warfare against an entire people", better describes the allied bombings of Dresden and Hamburg in WW2, the US bombings of Nagasaki and Hiroshima, or perhaps the B52 flights over Cambodia.

Secondly, to analyse the phenomenon of terrorism, is not to excuse it. I suggest that if Bart were to put what passes for his brain into gear, and re-read my posts he would notice, that for me, the duty of a state faced with terrorism in a democratic society is to apprehend the perpetrators of crimes and punish them according to law - but also to seek to ascertain whether the motivation for the crime results from some failure of the state in the human rights field so that in some circumstances the correct approach is a combination of repression and reform.

For example, I am no apologist for the terrorists in Northern Ireland (on either side). In my time I arrested quite a few people suspected of such offences. But as a thinking democrat (small 'd'), I had also to recognise that the whole terrorist problem in Northern Ireland resulted from policy failures on the part of government and I am very pleased that a combination of repression and reform has very largely worked.

"Perhaps, the greatest obstacle to Palestinian national aspirations is their embrace of terrorism in a desire to eradicate Israel. They need to fundamentally rethink their position. If they recognized Israel's right to exist and then proceeded with a Ghandi/MLK style campaign of non-violent protest, the West (including the US and its Jewish citizens) would rally behind them and they could win much of what they legitimately seek. So long as they aspire to massacre Israeli civilians, they will lose."

No, Bart, the greatest obstacle to Palestinian national aspirations has not been acts of terrorism. They are the symptom, not the cause.

In Israel too, state and religion must be separated and the institutions of the state must function on a basis which believers and non believers can share.

A state which operates on the basis that the human rights of a minority of the inhabitants of its territories must be subordinated to the views of a majority of a different ethnicity or religion is not a democracy but a dictatorship of the majority. Israeli politicians who seek to have the Jewish people of Israel believe that the fundamental rules of human rights do not apply to them are playing with fire. There will be no peace in or for Israel as long as the Arab inhabitants of the state are discriminated against in any substantial way.

Ami Isseroff's excellent Mid-East Web site has an excellent series of pages providing a potted history of the land variously known as Israel or Palestine beginning with prehistoric times and ending in 2000 (Christian Era).

Wisely, he introduces his "Brief History" with these cautionary words:

<""History, and different perceptions of history, are perhaps the most important factors in the Arab-Israeli conflict. Accounts of history, interpreting history in different ways, are used to justify claims and to negate claims, to vilify the enemy and to glorify "our own" side. Dozens of accounts have been written. Most of the accounts on the Web are intended to convince rather than to inform. This very brief account is intended as a balanced overview and introduction to Palestinian and Israeli history, and the history of the conflict. It is unlikely that anyone has written or will write an "objective" and definitive summary that would be accepted by everyone, but it is hoped that this document will provide a fair introduction. It would be wrong to try to use this history to determine "who is right," though many "histories" have certainly been written by partisans of either side, with precisely that purpose in mind. Those who are interested in advocacy, in collecting "points" for their side, cannot find the truth except by accident. If they find it, and it is inconvenient, they will bury it again."

The following is an even more brief account and will probably not please many readers:-

The modern problems of Palestine had their origin in the carve-up of the Ottoman Empire at the conclusion of World War I. In 1915, Sir Henry McMahon promised the Sherif of Mecca (Sherif Hussein) control over all Arab land to be liberated from the Ottoman Empire: namely the Vilayets of Aleppo, Baghdad, Basra, Beyrouth, Souriya, the Sanjack of Jerusalem, save for an area bordering the Mediterranean in the Vilayets of Aleppo, Souriya and Beyrouth and terminating just south of Beirut ("the reserved Area"). Then the British and the French reached in 1916 a secret agreement (inconsistent with McMahon's promise) on a carve-up of the Arab lands forming part of the the Ottoman Empire into French and English zones of influence (the infamous "Sykes-Picot Agreement").

As if, making contradictory promises to the Arabs and the French were not enough, the British also made promises to Haim Weizmann, leader of the Zionist Federation, who had settled in London in 1901. Those promises were embodied in the Balfour Declaration, a letter from the British Foreign Secretary to Lord Rothschild subsequently printed in the Times newspaper. It can be said that the unhappy modern history of Palestine begins with the Balfour Declaration.

To be fair, it should be noted that the Balfour Declaration referred to a Jewish National Home IN Palestine, not OF Palestine, but the fact remains that the land of Palestine was not the property of the UK to give away.

In 1919, President Wilson sent the Crane-King Commission to investigate the preferences of the inhabitants of Palestine as to mandates to be awarded by the League of Nations. The Crane-King Commission Report is now available on the Mid-East Web site and is of interest for many reasons, one of which is the terms of the instructions given by President Wilson expressed thus in a press statement given out by the Commission:-

"The American people-having no political ambitions in Europe or the Near East; preferring, if that were possible, to keep clear of all European, Asian, or African entanglements but nevertheless sincerely desiring that the most permanent peace and the largest results for humanity shall come out of this war- recognize that they cannot altogether avoid responsibility for just settlements among the nations following the war, and under the League of Nations. In that spirit they approach the problems of the Near East."

When one thinks that the Neoconservatives like to talk about their foreign policy objectives as "Wilsonian", one is struck by the extent of the present "European, Asian or African entanglements" of the United States of America.

In the event, the League of Nations awarded the Palestine mandate to the United Kingdom. It proved to be a poisoned chalice because as David Ben Gurion, later to be the first Prime Minister of the State of Israel, told a meeting of the governing body of the Jewish "Yishuv" in 1919:-

"But not everybody sees that there is no solution to this question...We as a nation, want this country to be ours, the Arabs as a nation, want this country to be theirs."

The United State of America is unique in that it is the only Western country with a Jewish population greater than that of Israel itself. The late Aba Eban, the Israeli scholar, historian and former Israeli Foreign Minister, wrote in his book "My People" that there were only two episodes during their history when the Jewish diaspora was treated justly, firstly in Muslim Andalusia and secondly, currently, in the United States of America.

That is not to say that the WASP (White Anglo-Saxon Protestant) elites of the USA did not discriminate against Jews just as their forebears in Europe had done - far from it - but the Jewish population of the United States of America has contributed greatly to cultural and political life - out of all proportion to their numbers. As a result, the Jewish lobby is a phenomenon no US President, Senator or Congressman can afford to ignore.

At the end of 1945, there were about 250,000 displaced Jewish survivors of the Holocaust in Europe. There was fierce pressure from the Jewish lobby to clear them for immigration to the USA.

A remarkable document is preserved in the Truman Library recording a proposal put by Lessing J. Rosenwald, then the President of the American Council for Judaism, to US President Truman at a White House meeting on 4th December 1945:-

Text of the 1945 ACJ Proposal on Palestine

The future of the displaced Jews in Europe continues in uncertainty. Their plight - with the rigors of winter ahead - remains desperately tragic. Meanwhile, conditions in Palestine have reached a stage alarming to the peace of the world. We have had sabre rattling, boycott, recriminations, rioting, bloodshed and threats of still more bloodshed.

This situation is not eased by the issuance of belligerent notes by sovereign states of the Near East, or by demonstrations and nationalist propaganda on the part of Zionists in and out of Palestine. It is high time to call a halt to this dangerous course.

So-called promises made or implied decades ago, ambiguous and mutually contradictory, and variously interpreted by various parties, must no longer be determinant in the face of a new and grave situation. There is no reason why realistic conditions today should not lead to a complete reconsideration of the Palestine problem as there has been of other world problems.

The necessity of reaching a workable and peaceful solution outweighs all other considerations. The peace of the world demands it. A solution of the Palestine problem can become a token of our earnest resolve to deal with broad world problems before they reach the crisis stage.

We urge the following as a basis for fair and peaceful settlement:

1) There shall be a United Nations Declaration that Palestine shall not be a Moslem, Christian or Jewish state but shall be a country in which people of all faiths can play their full and equal part, sharing fully in the rights and responsibilities of citizenship.

2) All official declarations on Palestine in any way discriminating for or against a segment of the population shall be formally repudiated; in their place shall be a renewed pledge of full freedom of religious expression and equality for all in Palestine.

3) Palestine, as a ward of the civilized world, shall receive financial help for the expansion of its economy, and the enlargement of its immigration opportunities.

4) Immigration into Palestine shall be maintained on the basis of absorptive capacity and without privilege or discrimination.

5) Immigration procedures shall be controlled by representative bodies of all the inhabitants of Palestine, in association with properly instituted international commissions.

6) Institutions of home rule for Palestine shall be progressively and rapidly instituted under the aegis of an international commission.

7) The problem of the displaced Jews in Europe shall be treated separately, in the following way:

(a) The above policy on Palestine shall be made known to them.

(b) On the basis of such knowledge a poll shall be taken in which the displaced persons would list, in order of preference, the lands of their choice for their individual resettlement.

(c) Based on these findings, an International Displaced Persons Committee shall, with the cooperation of the United Nations bring about the resettlement of the displaced on a basis corresponding as nearly as possible to their preferences, with countries of the United Nations co-operating to take in a fair number of the displaced. Action by the United States Government to make available unused and current immigrant quotas, and the necessary consular and visa machinery for the immigration of displaced persons of all faiths, would set a high moral example to the rest of the world of our determination to contribute to the solution of world problems and would, in fact, bring about the rapid solution of the refugee problem.

THE AMERICAN COUNCIL FOR JUDAISM IS PLEDGED TO ADVANCE THIS PROGRAM AS A CONTRIBUTION TO PEACE IN PALESTINE, HUMANITARIAN AID FOR THOSE IN DISTRESS AND FOR THE INTEGRATION OF THOSE OF JEWISH FAITH AS FREE AND EQUAL CITIZENS EVERYWHERE.

President Truman did indeed seek to obtain support for the opening of immigrant quotas to the USA for the displaced Jewish Holocaust survivors - but ran into rabid opposition from Republican WASPS.

That is unsurprising. They did not wish their banks and stock exchanges, their nice Virginia suburbs, their country clubs and so forth invaded by those who were not "people like us". After all, it was bad enough that the Pentagon washrooms had been desegregated.

Unable to obtain the opening up of the USA to the displaced Holocaust survivors as he wished, Truman felt forced to put pressure on the British Government as mandatory of Palestine to permit vastly increased immigration into Palestine.

Faced with enormous difficulties in Palestine, the British Government proposed a Joint Anglo-American Committee of Inquiry. The 1946 Committee Report (Mid-East Web site again) well illustrated the scale of the problem.

On 21st June 1946, Truman received advice from the Joint Chiefs of Staff on the carrying out of the Anglo-American Committee's proposals:-

We urge that no U.S. armed forces be involved in carrying out the Committee's recommendations. We recommend that in implementing the report, the guiding principle be that no action should be taken which will cause repercussions in Palestine which are beyond the capabilities of British troops to control....

Further, the Middle-East could well fall into anarchy and become a breeding ground for world war.

It is recommended that implementation of the report by force would prejudice U.S. and British interests in much of the Middle East and that British and U.S. influence would consequently be curtained except as it might be maintained by military force. The USSR might replace the United States and Britain in influence and power though the Middle East....

Also for very serious consideration from a military point of view is control of the oil of the Middle East...A great part of our military strength, as well as our standard of living, is based on oil.

Despite his inability to get his own people to accept substantial immigration from Europe, Truman was willing to put pressure on the British to accept massive immigration into Palestine (he was seeking permits for 100,000 displaced survivors in 1946), even though he knew that such immigration would create problems well beyond the resources of the British to control.

The consequence was that the British, bankrupted by World War II (which they had fought alone from 1939 until Pear Harbour) and faced with a deteriorating security situation in Palestine and no US support, decided to dump the whole problem into the lap of the United Nations.

The rest is history. The UN recommended partition, violence ensued, the Zionists proclaimed the State of Israel which Truman's USA recognised and there has been conflict ever since.

In his account of Truman's role, Ami Isseroff makes this point:-

"From the point of view of the Americans, and world opinion, the creation of Israel was a more or less conscious and wilful act that was meant to compensate for the Holocaust. This view has not been accepted by the Arabs, who protest that the Palestinians should not have been made to pay for the Holocaust. For his part in the drama, Harry S Truman is revered by Zionists and hated by Arab partisans."

That statement is certainly accurate. But Isseroff, also opines:-

"In the final analysis, it seems the US supported partition because in fact, there was no alternative. The British were unwilling and unable to continue the mandate. They could not admit Jewish immigrants in keeping with the terms of the mandate owing to Arab pressure. They could not continue to bar immigration in the face of Jewish pressure and underground resistance. No country, certainly not the US, was willing to send troops to enforce a trusteeship, which would have met the same problems as the mandate, a point that was never raised apparently, but which must've come into consideration. The bi-national state was opposed by both the Arabs and the Jews, and would've come apart at the seams as soon as it was established. The Arabs wanted to establish a single state in all Palestine, but they had not the wherewithal even to establish a state in the half granted to the Palestinians. The Jews would certainly have risen against such a state, with effects little different than those that resulted."

In terms of realpolitik, Isseroff is substantially right: but was there really no alternative?

What if Truman had thrown his weight and the considerable weight of the United States of America behind the American Jewish Council plan?

At the time of the UN partition plan, slightly less than half the land in all of Palestine was owned by Arabs, slightly less than half was "Crown land" belonging to the state, and only about 8% was owned by Jews or the Jewish Agency. There were about 600,000 Jews in Palestine, almost all living in the areas allotted to the Jewish state or in the internationalized zone of Jerusalem, and about 1.2 million Arabs.Therein lies the historic injustice. The land of the 1.2 million Palestinian Arabs in Mandated Palestine in 1945 has been expropriated from them to form an ever-growing Jewish state composed largely of immigrants.

If Truman had worked for the American Jewish Council plan, and been willing to persuade the UN to send to Palestine a fraction of the troops subsequently sent to Korea, a truly democratic state might well have weathered an inevitably stormy beginning.

Needless to say, without an effective "peace enforcement presence", intercommunal violence got worse and worse. The Jewish population proclaimed the State of Israel in 1948. Arabs fled the violence into refugee camps which continue to exist to this day. Various armistices were brokered by the UN, but conflict continued, culminating in the 6-day war of 1967, the Yom Kippur War of 1973 and the 1st and 2nd Intifada uprisings of the Palestinians. All attempts at brokering peace have failed miserably.

We in Europe cannot begin fully to understand so complex and historic a conflict as the Arab-Jewish conflict over Israel-Palestine, let alone devise any "instant solution". There are issues of land, of water, of immigration and return of refugees, of human and civil rights, of religious extremism. In large measure, we Europeans played a large part in the creation of the conditions which gave rise to the problems at the origin of the conflict.

Therefore, while I think it is right to raise the issue of the rejection of the ACJ proposal, it would not be right to condemn President Truman for doing so. In the post-war chaos of 1948, there were many problems on the President's table - and in any event, Europe has a far greater historic responsibility for the problem.

What if the Crusaders had not sacked Jerusalem in 1099? What if the Christians of Europe had not systematically discriminated against and persecuted the Jewish minorities of the European diaspora - would Zionism have evolved as the potent force it eventually became ? What if the Holocaust had not happened - would the guilt-ridden victors of World War II have permitted the Arab-Jewish conflict to develop in the way it did immediately after World War II ? What if the United States of America had taken up in 1945 the wise and humane proposal of the American Council for Judaism and thrown its might behind it ?

In a moving stream, one can never immerse one's hand twice in the same water. "What if", is an idle speculation.

Successive US Administrations have also armed Israel to the teeth - making of it the only state in the Middle East to possess a substantial arsenal of weapons of mass destruction. Part of the consequence of the reckless US arming of Israel is that Israel is presently in a position to blackmail the international community: "leave us alone to behave as we will, or we'll use our nuclear weapons".

It is relevant to know something about Israel's nuclear capability and a useful starting point is a paper published on the web site of the US Air Force's Air War College The Third Temple's Holy of Holies: Israel's Nuclear Weapons That paper, which is, of course, unofficial, estimates that Israel possesses a complete repertoire of nuclear weapons - with as many as 400 deliverable devices. As the author puts it:-

"One other purpose of Israeli nuclear weapons, not often stated, but obvious, is their “use” on the United States. America does not want Israel's nuclear profile raised. They have been used in the past to ensure America does not desert Israel under increased Arab, or oil embargo, pressure and have forced the United States to support Israeli diplomatically against the Soviet Union. Israel used their existence to guarantee a continuing supply of American conventional weapons, a policy likely to continue."

Israel's systematic denial of human right to the Palestinians is excused and justified to the American public by a very powerful Neoconservative lobby. For example, in 1996, a group of US Neoconservative Likudniks, including Richard Perle, Douglas Feith and James Colbert, ran a study group in Israel for the incoming Netanyahu Government. The Group advised the Likud as follows:-

"To anticipate U.S. reactions and plan ways to manage and constrain those reactions, Prime Minister Netanyahu can formulate the policies and stress themes he favors in language familiar to the Americans by tapping into themes of American administrations during the Cold War which apply well to Israel."

This was essentially the development of a "marketing strategy" in which Israel was advised to dress up its human rights abuses in language which would not offend the US perception of Israel. This meshes very well with the Bush Administration's own version of George Orwell's Newspeak. In such Newspeak, state ordered assassinations or murders become sanitised into "extrajudicial killings". Torture becomes "enhanced interrogation", kidnapping become "extraordinary rendition". The deaths of civilians frm missile attacks become "collateral damage".

It is worth reading the Press Release of the UN Security Council Debate of 25th March 2003 at which the United States of America interposed its veto for the 28th time to prevent the condemnation of Israel by the world body. Those with memories of unlawful US activities in Honduras and Nicaragua will appreciate the irony of US Ambassador to the UN and pardoned felon, John Dimitri Negroponte, being the US Representative charged with wielding the veto.

Time is running out. The lid cannot be held down much longer on the boiling cauldron of resentment that the Palestinian issue represents in the Muslim world of the West as well as of the East. And that is why many in Europe rightly regard the Israel-Palestine conflict as the greatest single present threat to world peace.

It goes without saying that the views of those furthest on the Neconservative and Likudnik right are just as obnoxious and just as dangerous as those of the Salafist (Islamist) fundamentalists who wish to establish neo-califates with rule in accordance with their own particular misinterpretation of God's law.

There was this editorial cartoon - George giddily reacting to Hamdan sentencing by demanding that they find him Osama's pastry chef now - that gave me a pause.

Joking aside, say you are one of the Bush/Cheney drivers ferrying them around. How can you be sure that out of their frustration for not being able to lay their hands on them some country out there will not detain you only to charge you later with providing material support for your principals, the putative "war criminals"?

How?

Well here is how:

The only other country that was stupid enough to enact radiculous material support laws (thank our Congress for that here), that is to criminalize driving people around, making their pastries, etc appears to be the Great Britain, nobody else was that Orwellian, that Kafkian, nobody went that overboard.

Yes they had laid their hands on Pinochet some time ago but to think they would go after anybody from this country is radiculous, Brits know their place and will behave accordingly.

"The only other country that was stupid enough to enact radiculous [sic] material support laws (thank our Congress for that here), that is to criminalize driving people around, making their pastries, etc appears to be the Great Britain, nobody else was that Orwellian, that Kafkian, nobody went that overboard.

Sorry, wg.

You have evidently not been keeping up with matters of international law.

In the wake of the tragedy of September 2001 the United Nations Security Council passed Resolution 1373 which requires ALL UN Member states to:-

In 2004 the Security Council adopted resolution 1535, creating the Counter-Terrorism Committee Executive Directorate (CTED) to provide the CTC with expert advice on all areas covered by resolution 1373.

In 2005 the UNSC adopted resolution 1624 concerning incitement to commit acts of terrorism. The resolution also stressed the obligations of countries to comply with international human rights laws.

The UK and its EU partners have acted in compliance with their international obligations.

One of the tensions created by such legislation is the issue of respect for human rights.

For example there is a live issue as to whether suspects can be extradited to jurisdictions were international human rights norms are not observed - eg the USA - whether US diplomatic assurances about the non-use of torture can be relied upon - etc.

And while I do not think official drivers or other members of the present Administration's domestic staff are at any risk outside of the USA, I would not make the same assumption for those who were the controlling minds of deliberate human rights abuses such as torture.

And yes, there has been a tendency for prosecutors to use sledgehammers to crack nuts - but by and large such tendencies have been curbed on appeal.

In fact, I am jaundiced enough to wonder whether this trial was a cynical manoeuvre to convince the public that the unfair procedures can be ignored because the military juries can be relied upon to do substantive justice.

You right I wasn't aware of RES. 1373, but recall I wasn't talking about any plain vanilla material support laws, I was talking about laws that are overbroad/reckless enough to the point of being radiculous.

Criminalizing material support of terrorism when limited to non-state actors makes a lot of sense, it was a particular flavor of it (MCA, Patriot Act and similar or even further going UK laws) that permit sentences of 5.5 years for chauffeuring people around (and by extension making their pastries) that is highly objectionable.

I do not exclude that some other countries have similarly reckless/overbroad laws on their books, maybe somebody here knows. Some may even have no laws for that matter, UN resolutions tend to be generally ignored by member countries and going slow in these matters is generally highly advisable.